In re I. H. H.

Court of Appeals of Georgia, Third Division

May 18, 2018

IN THE INTEREST OF I. H. H., a child.

ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
PHIPPS

Bethel, Judge.

The
mother appeals the juvenile court order terminating her
parental rights. She argues that the juvenile court erred in
finding by clear and convincing evidence that the child would
be harmed if the termination petition was not granted. We
disagree and find that the juvenile court was statutorily
authorized to terminate the mother's parental rights
pursuant to OCGA § 15-11-310 (a) (4), which provides for
termination of parental rights when "[a] child is
abandoned by his or her parent[.]"

"[O]n
appeal from a termination order, we view the evidence in the
light most favorable to the juvenile court's ruling and
determine whether a rational trier of fact could have found
by clear and convincing evidence that the parent's rights
should have been terminated." In the Interest of S.
O. C., 332 Ga.App. 738, 741-742 (774 S.E.2d 785) (2015)
(footnote and punctuation omitted). "In making this
determination we neither weigh the evidence nor judge the
credibility of the witnesses, but instead defer to the
factual findings made by the juvenile court, bearing in mind
that the juvenile court's primary responsibility is to
consider and protect the welfare of a child whose well-being
is threatened." In re S.C.S, 336 Ga.App. 236,
245 (784 S.E.2d 83) (2016) (citations and punctuation
omitted).

So
viewed, the evidence shows that the child was placed in the
custody of the Gwinnett County Department of Family and
Children Services on June 18, 2015, based on allegations that
he had been abandoned by his mother. The mother had gone to
California and left the child with a paramour who in turn
left the child with the child's maternal great
grandmother. After the great-grandmother was no longer able
to care for the child, the child's putative father was
contacted by the Department to retrieve the child. At that
time, the mother's whereabouts were unknown and she had
not been heard from in six months. The child was found to be
dependent by the juvenile court since he was without a legal
custodian due to being abandoned by his mother. At the final
adjudicatory hearing in September 2015, the mother, who was
represented by counsel, stipulated to her inability to care
for the child and asked that the child be placed in the care
of fictive kin, T. T.[1] The mother expressed her willingness to
work through a case plan in order to reunite her with the
child.

Following
an October 2015 hearing, the mother made no contact with the
Department, had not begun working on her case plan, and her
whereabouts were once again unknown. After the mother failed
to appear for other hearings, the Department filed a motion
for non-reunification and termination of parental rights. The
mother did not attend the hearing on the motion.

At the
motion hearing, the assigned case manager testified that the
mother never signed the case plan and that the Department had
been unable to contact her. The case manager noted that aside
from telephone conversations, the child had not had any
physical contact with the mother and that the mother had
provided no financial assistance for the child. The juvenile
court also heard from the child's caretaker, T. T., who
testified that since coming to live with her, the child has
developed a strong bond with T.T. T. T. also testified that
since coming to live with her, the mother calls the child
sporadically but has not visited him or sent money to aid in
his care. T. T. confirmed that the child missed his mother
and did not understand why she did not call or visit him. T.
T. also testified that the mother has a history of erratic
behavior and mood swings. T. T. told the juvenile court that
she wanted to adopt the child.

Following
the hearing, the juvenile court entered an order terminating
the mother's rights to the child based on the finding
that the child had been abandoned. The mother moved for a new
trial which was denied. This Court granted the mother's
application for discretionary appeal and this appeal
followed.

In her
only enumeration of error, the mother argues that the
juvenile court erred in finding that the child would be
harmed if the termination petition was not granted. Because
the mother misinterprets the statutory ground on which the
order for termination was granted, her argument is without
merit.

OCGA
§ 15-11-310 (a) (4) provides that termination of
parental rights is authorized when "[a] child is
abandoned by his or her parent[.]" OCGA § 15-11-2
(1) defines "abandonment" or "abandoned"
to mean "any conduct on the part of a parent, guardian,
or legal custodian showing an intent to forgo parental duties
or relinquish parental claims." The statute further
provides examples of such conduct, such as a parent's
failure to communicate meaningfully with the child, maintain
regular visitation with the child, leave the child with
another person without provision for his or her support, or
to participate in any court ordered plan or program designed
to reunite the parent and child for a period of at least six
months. See OCGA § 15-11-2 (1) (A)-(H).

Here,
the Department claimed in its petition for termination that
the child had been abandoned by her mother and putative
biological father.[2] During the termination hearing, the
evidence showed that the child was abandoned by his mother
for over six months and had been in the Department's
custody for nearly a year. Counsel for the mother conceded
that the child was dependent. The evidence also showed that
the mother refused to sign a case plan and that she had no
physical contact with the child since he was placed in foster
care. The mother did not attend the termination hearing, and
her attorney told the court that he did not know the
mother's whereabouts.[3]

And after reciting its findings of fact, the juvenile court
stated: Based upon the foregoing, the Court finds and
concludes that there exists parental misconduct[4] relative to the
above-named child; that the mother and putative father have
failed to provide their child with a home, care or support,
and that the parents have abandoned their child. The Court
finds and concludes that clear and convincing evidence
supports the termination of [the mother] and [the putative
father].

Contrary
to the mother's argument, the statutory provision in
question does not require the juvenile court to make a
finding that the child would suffer harm if he remained in
foster care in order for parental rights to be terminated.
Additionally, the mother has failed to enumerate as error and
challenge on appeal the juvenile court's determination
that the evidence supported a finding of abandonment by the
mother as a statutory ground for terminating her parental
rights. Therefore, the mother has waived on appeal her right
to challenge the juvenile court's finding as to this
ground on appeal. See, e.g., In the Interest of
E. G. M., 341 Ga.App. 33, 49 (2) (a) (798 S.E.2d 639)
(2017); In the Interest of B. M. L., 239 Ga.App.
511, 512 (521 S.E.2d 448) (1999). Cf. Hewitt v. Community
& S. Bank, 324 Ga.App. 713, 716 (2) (751 S.E.2d 513)
(2013) ("Grounds that are not attacked as erroneous will
not be considered on appeal and are presumed to be binding
and correct. An appellant's failure to attack alternative
bases for a judgment results in the affirmance of that
judgment.") (citation and punctuation omitted);
Marks v. State, 280 Ga. 70, 75 (4) (623 S.E.2d 504)
(2005) (holding that failure to enumerate on appeal a ruling
as error will result in waiver of the claim).

Thus,
because the termination of the mother's parental rights
is justified on ...

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